Root of crisis lies in Constitution

By Yen Chueh-an 顏厥安 /

Tue, Apr 08, 2014 - Page 8

The student occupation of the legislative chamber has now been going on for more than two weeks. The government, which clearly pays no attention to public opinion, wants to continue its suppression. The result could be that the constitutional crisis that has been highlighted by the controversy over the cross-strait service trade agreement not only continues, but deepens.

What is a constitutional crisis? In theory, this occurs when the constitutional system — mainly, but not only, the Constitution — is no longer able to respond to major political controversies or conflicts, and the resulting confrontation and deadlock renders important government institutions incapable of functioning, bringing them to a standstill. To put it plainly — this happened when strongly disliked officials — President Ma Ying-jeou (馬英九) and Premier Jiang Yi-huah (江宜樺) — did not have to step down, but continued to push through unpopular policies, such as the service trade agreement or the construction of the Fourth Nuclear Power Plant in Gongliao (貢寮) District, New Taipei City.

What are some of the main systemic causes of this constitutional crisis?

First, a major cause is the strong presidency. “Strong presidency” is often simplistically and wrongly understood to mean that the president holds great powers, but carries no responsibilities. The key point, however, is not that the president has a lot of power, but rather that he or she can act as if he or she did, which in effect makes the president oblivious to anything but power.

This situation is a result of the fact that the president is not answerable to any institution charged with placing checks and balances on the presidency, so that presidents are completely free to appoint any important official they want, while it is extremely difficult to muster the numbers required to recall or impeach a president. This situation, which makes the president blind to anything but his or her own power, will either result in the president going on a “power rampage” or a president still feeling good about himself, despite the fact that his approval rating has dropped to 9 percent.

Second, none of the powerful officials in the Cabinet, including the premier, are elected, and there is not even the pretense that their appointment requires legislative approval. This kind of power arrangement very easily results in a narcissistic power elite that, along with the bureaucracy, metamorphoses into a dominant para-aristocracy. When the legitimacy of the whole government is built on the election of a single person — the president — the relationship between the president and the other government officials is not one of appointment, but rather one of benevolent gifts and the bestowing of titles, while public opinion is forever relegated to a secondary concern.

Third, the distribution of legislative seats and the electoral system brought about by this rotten Constitution have created a distorted party and constituency distribution, and thus distorted the legislature’s representativeness. Although Taipei is a pro-KMT area, the DPP still receives more than 40 percent of the vote in elections, but they only have one legislative seat. In the previous legislature, that number was zero and there are no guarantees that the number will increase after the next legislative election.

As for the present group of legislators, the Taiwan Solidarity Union, which got 1.17 million votes in the last election, only received three seats. The People First Party, with more than 700,000 voters, received two. Over 1 million voters are unrepresented. “Small” parties are in fact not very small at all, and they frequently provide systemic friction or thrust. Pressures within the electoral system are insufficient to highlight problems and provide solutions, with the result that problems simply keep accumulating. More concretely put, the system allows the KMT to continue its corrupt practices and the DPP to continue to flounder, while the public loses all confidence in the system.

Fourth, the position of the cross-strait relationship, which is crucial to Taiwan’s survival, within the constitutional system is extremely unclear, and that could be very dangerous. The amendments to the Constitution simply mention that it is necessary to write laws regulating the relationship between the people in Taiwan and China, but it is completely incapable of addressing how relations between the governments on the two sides of the Taiwan Strait should be handled systemically. This is why the dispute over the cross-strait service trade agreement has descended into chaos, which demonstrates why it is necessary to pass some version of an act regulating the oversight of cross-strait agreements. The KMT wants to rely on a strictly procedural approach to avoid systemic problems. This is no longer a matter of the party sticking its head in the sand; rather, it is hitting out blindly in every direction, which will not solve anything and will only continue to hurt the public.

Fifth, along with globalization and neoliberalism, these issues have undermined Taiwan’s democracy and resulted in the development of a bloodsucking system where the rich and powerful make important decisions and the disadvantaged are exploited. The government continues to give hand-outs to the elite, legislators continue to do as they are told, housing prices skyrocket, land is stolen, salaries are stagnant, there are no guarantees for the future and even the middle class has to work its fingers to the bone.

What about the government? Apart from chanting “liberalization” and “deregulation,” it in effect continues to allow the “commoditization” and is selling out the public. The few that protest are persecuted, and the public has long been disappointed and infuriated by the government and the establishment. This is why, as the government violates even the most basic democracy, the young and non-governmental organizations have occupied the legislative chamber. It really should not surprise anyone.

Many forces, including conservative forces, are currently standing up and calling for a popular constitutional conference — a demand independent of the service trade agreement issue — and civic organizations are beginning to contact each other and organize in the hope of creating a true, visionary, popular constitutional conference that is not controlled by political or conservative forces. The constitutional crisis set off by the occupation of the legislative chamber has also created an opportunity for a democratic revival. Let us grasp this opportunity and initiate a second democratic reform.

Yen Chueh-an is a professor at National Taiwan University’s College of Law and a supervisor of Taiwan Democracy Watch.